Justin Carter said he would "shoot up a kindergarten," but is that a "terroristic threat" according to Texas law?

Approximately one hour after Justin Carter posted a sarcastic comment on a Facebook thread, his life began to ­unravel.

The process began behind the scenes, in another country. The 18-year-old Carter had no way of knowing that, while he did grunt work at a drapery shop in San Antonio, a person in Canada saw his comments — posted 60 days after the Sandy Hook school-shooting tragedy in Newtown, Connecticut — freaked out and initiated a 24-hour chain reaction of insanity that would wind up with Carter facing ten years in prison.

Image courtesy of Don Flanary

Prosecutors have failed to produce the entire thread containing Carter's alleged threat, according to his attorney, Don Flanary.

Josh Huskin

Attorney Don Flanary of San Antonio says Justin Carter was coerced into confessing to something that wasn't even a crime.

Carter's comments were part of a duel between dorks and may have had something to do with a game with strong dork appeal called League of Legends. But the actual details and context of the online exchange are, in the eyes of Texas authorities, unimportant. Prosecutors say they don't have the entire thread — instead, they have three comments on a cell-phone screenshot.

One of the comments appears to be a response to an earlier comment in which someone called Carter crazy. Carter's retort was: "I'm fucked in the head alright, I think I'ma SHOOT UP A KINDERGARTEN [sic]."

Carter followed with "AND WATCH THE BLOOD OF THE INNOCENT RAIN DOWN."

When a person writing under the profile name "Hannah Love" responded with "i hope you [burn] in hell you fucking prick," Carter put the cherry on top: "AND EAT THE BEATING HEART OF ONE OF THEM." (The Austin police officer who wrote up the subsequent report noted: "All caps to emphasize his anger or rage." )

That's when someone in Canada — an individual as yet unidentified in court records — notified local authorities. Because Carter's profile listed him as living in Austin, the Canadians sent the tip to the Austin Police Department. Along with a cell-phone screenshot of part of the thread and a link to Carter's Facebook page, the tipster provided this narrative: "This man, Justin Carter, made a number of threats on facebook to shoot up a class of kindergartners...He also made numerous comments telling people to go shoot themselves in the face and drink bleach. The threats to shoot the children were made approximately an hour ago [sic]."

The information was forwarded to the Austin Regional Intelligence Center, an information clearinghouse for law enforcement agencies in Travis, Hays and Williams counties.

Center personnel ran Carter's name, found either a driver's license or a state ID card and discovered that the address listed was "within 100 yards" of Wooldridge Elementary School. Based on a Travis County prosecutor's belief that there was probable cause to charge Carter with a third-degree terroristic threat — which carries a penalty of two to ten years — a judge issued an arrest warrant. U.S. Marshals traced Carter to the drapery shop in San Antonio where he worked and handcuffed the cherub-faced, brown-haired teen. Until that point, his only brush with the law was a temporary restraining order two years earlier.

After his booking into the Bexar County Jail, authorities discovered that he actually lived in New Braunfels — Comal County. After his transfer there, his bond was increased from $250,000 to half a million dollars.

According to Carter's attorney, Don Flanary, the 18-year-old suffered brutal attacks in the Comal County Jail during the four months he was held there.

Police records allege that, upon being booked into Bexar County Jail, Carter stated, "I guess what you post on Facebook matters."

He had no idea.
_____________________

When officers searched Carter's home, Flanary says, they did not find the hallmarks of a lunatic.

"They found no guns in his house," Flanary says from his San Antonio office. "They found no bomb-making materials." He follows this up with a dash of sarcasm that's not a far stretch from the rhetorical flourishes that put his client in peril: "They didn't find The Anarchist Cookbook...They didn't find, you know, a bunch of newspaper clippings on the wall — conspiracy theories, with yarn from one place to another. They didn't find pentagrams and candles. He wasn't listening to Judas Priest."

Flanary's explanation for this is simple: His client is not a nut. But Flanary can't say the same for the jam his client's in. "This whole thing is totally and completely bonkers."

In the absence of any other evidence mentioned in Comal County prosecutor Laura Bates's filings, it's hard to disagree. Despite repeated calls, the Houston Press was unable to speak with Bates or anyone else in the Comal County District Attorney's Office — a receptionist told us that the only person authorized to speak to the media was District Attorney Jennifer Tharp herself, and she was unavailable.

One of the most striking things about the evidence so far tendered by the state is what's missing: the entire thread — which wasn't on Carter's Facebook page — containing the damning comments.

"The state tells us Facebook didn't give it to them," Flanary says. He's unsuccessfully tried to find "Hannah Love," the only other profile included in the cell-phone screenshot; at this point, it's still unclear whether "Hannah Love" is the anonymous Canadian tipster.

Flanary believes it's paramount that if someone is criminally charged on the basis of his words, a jury needs to see all the words. In this case, that includes whatever comment precipitated Carter's hyperbolic rant.

"If you understand the English language, when someone says, 'I'm fucked in the head alright comma,' that is a preparatory phrase...in response to a previous phrase. Presumably, someone [said] to him, 'You are fucked in the head,' or words similar to that."

But Flanary says that Bates presented a truncated version of the comments to grand jurors. They did not see "I'm fucked in the head alright, I think I'ma" before "shoot up a kindergarten." If this sounds like the nitpicking of a defense attorney, that's precisely the point.

"When you're dealing with speech," Flanary says, "...it is absolutely, 100 percent important that the words that you are charging people with are actually the words that they said and not some misrepresentation. And that's what...this prosecutor did, is misrepresent to the grand jury what he said."

Still, there's an even bigger problem, according to Flanary: His client's comments are not a "terroristic threat" as defined by the Texas Penal Code.

According to the indictment, Carter's statement met two of the necessities required by state law: His words were uttered "with the intent to place the public or a substantial group of the public in fear of serious bodily injury," or uttered "with the intent to cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service."

But Flanary likens the Facebook thread at issue to a fight on the playground. Just a couple of people spouting off. Citing two key federal court rulings, Flanary says, "There must be a clear and present danger, and there must be a true threat. And if you don't have a true threat, then the First Amendment protects your speech. Plain and simple."

Flanary also accuses law enforcement of coercing a confession from Carter while he was in jail.

Evidently, law enforcement personnel were unable to pinpoint legal jurisdiction as swiftly as they were able to make an actual arrest: For some reason, it wasn't until March 19, 2013, more than a month after his arrest, that Carter was questioned by a New Braunfels detective. He was still in the Travis County Jail, unindicted.

Although Carter had been assigned a public defender, she wasn't present during the questioning — and wasn't notified about it — and, according to Flanary, detective Joe Robles implied that Carter could go free if he would just admit to being the same Justin Carter who posted the comments.

"Once one has a lawyer, it is unethical for the prosecutors to send any part of their team — to include detectives — to speak with someone who is represented," Flanary says.

"Never mind the unethical implication and the downright shady nature of the action; when an officer goes and talks to a man who's in jail [and] tells them, 'Waive your right to an attorney because we're letting you go,' or makes that implication, then that waiver is not given voluntarily anyway — and so it's like coercing a confession, from a legal standpoint...It's like, 'Hey, if you talk to us, we'll let you go, but if you don't talk to us, you can sit here and rot.'"

Frightened and naive, Carter copped to the comment. Instead of being released, he had only managed to transfer himself to another jail and double his bond. Emboldened by the confession, Comal County authorities moved him to their jurisdiction and secured an indictment on April 10.

"Then he sits in jail for another two months," Flanary says. "He has a court-­appointed lawyer in Comal County. And this court-appointed lawyer, as far as we can tell, did nothing other than get an offer from the state. And the prosecutors offered him eight years in prison."

The Comal County District Attorney's Office did not intend for Carter to suffer what happened next, Flanary says, but it was reasonably foreseeable: He was sexually assaulted.

"He definitely was not kept safe, " Flanary says. "And that's why it's not good to have innocent 18-year-old [guys] in jail with very, very dangerous people."

Though Carter's family had already gathered thousands of signatures for an online petition calling for a judicial review of the case, created a "Save Justin Carter" Facebook community page to raise interest in the case and sold T-shirts to raise money to cover his bail, the goal was beyond their financial reach. He was stranded in jail.

But by July 2013, Carter's defense had gained momentum in two important ways: Flanary stepped in and offered his services pro bono — something he wanted to do because, he says, "This stuff is messed up." And then news coverage of the case, which up to that point had been reported mostly by Austin and San Antonio media, went global.

Flanary was particularly incensed at the $500,000 bond, saying, "The Texas Constitution and virtually all case law from it says that it's illegal to keep someone under conditions of bond they can't afford."

Flanary requested a hearing to reduce Carter's bond, and Carter's parents took advantage of the media interest and began speaking about the emotional costs of the situation. (Unfortunately, Flanary didn't want Carter or his parents to comment for this story.)

In a CNN interview, Carter's father, Jack, said that his son was under suicide watch.

"He's very depressed," Jack Carter said. "He's very scared and he's very concerned that he's not going to get out. He's pretty much lost all hope."

Carter's mother, Jennifer, told the World Socialist Web Site in June 2013 that when she first found out her son had been arrested, "I thought as soon as the police talk to him, they will see it was a joke and let him go. If anything, it would be a misdemeanor. I thought if they talked to him, they would realize it was just his sarcastic sense of humor."

When asked what kind of person Carter was, Jennifer said, "My son is sarcastic and has a dark sense of humor, for sure. But he's a pussycat. He can't fight. He has a younger brother, and when they would fight, Carter would always lose."

Then, shortly after Flanary requested the bond-reduction hearing, good news came in the form of an anonymous donor who put up the money for Carter's bond.

But in an August 2013 update on the Save Justin Carter page, Jennifer Carter expressed her continued fear over her son's future. "Justin is out of jail," she wrote, "but he is not free."
_____________________

If Carter is to be measured by his Facebook activity, he is, with a few notable exceptions, a pretty typical kid. At least for a nerd.

Certainly, he appears to be more comfortable online, where he met fellow fans of games like League of Legends and Minecraft. He boasted of high gaming scores, griped about school and work, and wrote a zombie-apocalypse story in which he alternately protects "New Austin" from the cannibalistic walking dead and gets laid like a champ. He playfully sparred with his parents, who are divorced, and doted on his younger brother.

The big red flag is his reference to a temporary restraining order a high school ex-girlfriend obtained against him in October 2011. The ex, who asked not to be named, told the Press that, when she told him she wanted to end things after two weeks with him, Carter's behavior scared her. She says he talked about hurting himself — and her.

"At first I thought he was just playing," she says. "I blew it off."

But then, she says, "He started threatening me, saying that he would kill me...I told the school officers, [and] they started watching him really closely. He would say that he would shoot up the school." She also accused him of stalking her.

Because she and Carter were juveniles at the time, the order is not public, and the woman said she did not have a copy. The woman said she was in foster care at the time and ran away from her group home before attempting to secure a permanent restraining order.

"There wasn't a determination either way about the veracity of her claims, and he [was] never given an opportunity to answer it," Flanary says, adding that it's entirely irrelevant to the charge against his client.

Carter made light of the restraining order at the time, writing on Facebook, "Wow [I] can't believe im already at the phase in my life where my crazy ex takes a restraining order out on me>.>now [I] have to go to court when im not even gonna argue it im just gonna be like YES GIVE ME ONE TOO PLEASE [sic]."

Shortly afterward, Carter claimed he was engaged to another student, writing that "she is the love of my life and I am so happy, please be happy with me, If you are interested in attending our wedding which we be held late next year, please let me know thank you [sic]."

But comments posted earlier that year are darker. In January 2011 he wrote, "Noone likes me, I have no friends. I'm ugly, I'm annoying. The only good aspect is im smart. Too smart. Soo smart it bothers people. They think im crazy im not christian another strike against me. Im weird. Noone likes the weird random kid [sic]."

In April he wrote, "Suicide. Yea. Im thinking about it, wish I had bigger balls. Id fucking kill my self RIGHT NOW, but no im a pussy I hate my self [sic]." This was followed a day later with "kill self," which drew concern from his mother.

Jennifer Carter posted on her son's Facebook page, with unknowing prescience, "You really need to think about what you're posting, Justin, you have people worried about your safety..."
_____________________

According to Flanary, a funny thing happened when Carter got a new lawyer and media coverage exploded.

Comal County prosecutors, who wanted Carter off the streets for eight years, offered ten years' probation, with Carter pleading guilty to the felony charge. Flanary says he was insulted.

"The fact is, the case should be dismissed," he says. "He didn't do anything wrong...That's what dictatorships all around the world used to do. They'd say, 'If you confess to your crimes against the state, we will let you go.' I mean, fuck you. I didn't do anything wrong...'Just admit you're a witch or we'll burn you. Why won't you just admit you're a witch?'"

Flanary is adamant that the case has been handled in just that way.

"The way that the criminal justice system is supposed to work and was envisioned by our founding fathers is: First you prove the crime, then you get the punishment," he says. "That's clearly how it's supposed to work. But now, in Justin's case, [it's] 'Let's do the punishment first and then we'll see if we can prove the crime later.' The damage has been done. And I suspect they know the damage has been done. I suspect that maybe one of the reasons they're holding on so hard is because they fear a lawsuit."

Flanary says that, as the father of two kids in elementary school, he understands why Austin police wanted to follow up on the tip from Canada. But, he says, police questioning should have revealed a somewhat dorky kid who wrote something dumb and offensive, not a kid bent on mass murder.

"If they're spending their time chasing around people like Justin Carter, I hope they're not missing the real dangers to society, the real school-shooters," Flanary says. "There's only a finite number of police, and if they're chasing around guys who are being mean on Facebook, where are the ones fighting crime?"

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Honestly I'm shocked people actually think its okay to jail a stupid child and subject him to such shitty conditions for 2-10years.. People saying that he deserves to be punished for making such a threatening comment are right, but this is way too much... Maybe a fine, or a warning to scare him and make him understand what he did is wrong.

Not to mention he said jk and lol afterwards? But that was conveniently left out? Man I'm Canadian and I've seen a documentary comparing the USA and Canada and it was saying how paranoid Americans (in general (sorry if it sounds racist)) are, they all lock their doors and always think someone is going to kill them, but I never realized how crazy it is down there...

Also it kinda does bug me that they keep emphasizing it was a Canadian who sent the tip off. And I do get the feeling the tipper was that Hannah Love or whoever he had that argument with. It really is tragic what happened to this guy.. He was clearly already depressed and having issues but now... not to jinx it but I don't think he'll ever get better after this.. So much time wasted and being raped, humiliated, and all this other crap.. I just don't see how people can think this is okay.. Not to mention if they actually see how angry people are in League of Legends or competitive games in general... I can't believe this case has gotten so far.

What he did is what all teenagers do. Bitch to friends, say shocking and outrageous things, argue with anyone, feel all alone/emo angst like. The biggest difference is we now have this platform to say anything we want at any time with 'anonymity' and we don't think about how it comes out.

I was a kid like him. Hard working, never been in a fight, also thought of suicide as a teenager (like most of them) and i definitely said dumb things like 'Oh i'm gonna kill this person!' Or "god these kids should get hit by cars"

I still say thinks like 'I hate ___! I just wanna kill her/him/it!' or 'F this place let it burn!' That doesn't mean I am going to follow through with any of that. It is just venting frustrations or annoyances.

The police should never have arrested him and held him for so long in Jail. If anything respond to something like that and get a search warrant. If there is no sign of planning, or anything that shows intent...let them go with a fine for being a dumb ass. Or something else along those lines. Max time allowed to hold someone...48hrs at the police station, not a prison with actual Criminals.

Besides I am fairly sure that if someone was planning on shooting up a kindergarten, or bombing something they wouldn't post it on line for everyone to see.

The person in Canada did not initiate this. I stopped reading after that. I see in the comments he was raped. That is another issue. Just because the jails need to be cleaned up doesn't mean that crimes should be ignored. I feel sorry for him on a personal level but he did this to himself.

Okay, so I read the article and the judicial system in that county sucks big time, what they need to do is counter sue for mistrial and take it to the circuit court! But that's cuz the prosecution was so messed up as far as the merits if the case the guy should definitely be charged with some crime I mean comments like that are ridiculous and uncalled for, get some social sense or be charged with crime but it should be like $500 or a week in jail not some crazy two years stuff

Prosecutorial overreach is an epidemic in the United States. These douchebags are careerists first and foremost, and in their mechanical minds, they think they need to put as many people in jail as possible, whether guilty or innocent, in order to further those aims.

he'd already done time! / while real idiots walk free / then there's the anonyminity of the Canadian b**tch self-proclaimed watchdog and superior suburban mom that lands a young main into a jail cell and nothing is done to investigate her???/ people say and talk Sh** all the time on the net/ and facebook blocks so much BUT they let bullying 'threads' roll on and on/ so done with facebook/ the hipocrasy is surreal with them / then there's this media zealot prosecutor- Thorpe- something- from bum f** texas that 'has her eye' on this case / this case gets me so upset

Facebook is a public space. You can't walk into a crowded theater and scream, "Fire!." It's against the law. And you shouldn't be able to go on a social media site and announce -whether you are joking or not - that you are about to go massacre a bunch of children. This has nothing to do with free speech. If this asshole has to spend some time in jail in order to learn that he needs to shut his fucking mouth when he gets a sociopathic thought then I say so what. Maybe other clowns like this kid will take heed and learn some basic manners.

The real reason Comal County Jail is being so hush hush about this is because they are covering up what happens inside. Listen to this recording made by a whistle blower to the jail about Justin and the conditions of said jail. http://www.youtube.com/watch?v=rnz99usCQZQ

Also Google search Friends And Family Of Comal County Inmates for more resources and other recordings.

@thirteenmitredabbots He did it to himself.... yes quite the words of an empathetic person who truly feels sorry for someone, Pontius Pilate. You didn't keep reading to the point where it was explained that it actually wasn't a crime and the powers that be that you so mindlessly defer to are desperately holding on hoping for a plea because they fear being held accountable for their actions. And by actions I mean being accessaries to rape. If you send someone to prison -- where their safety is your responsibility -- and that person gets raped then you are like the guy holding Jodie Foster to the pinball machine in The Accused. You are complicit in the crime. By excusing the behavior of the authorities and willingly remaining ignorant, you are also complicit.

@Anon You analogy fails. Saying it was like he walked into a theatre and shouted fire would imply that he made these comments in a place where people at the school could actually hear them and have their safety threatened by the commotion. This is more like shouting fire into a phone, having the receiver put on speaker phone, then the shout echoes down the street into the open door of a theater and then someone with super hearing hears the whisper of fire and freaks out. Yeah, the guy who said fire in that case deserves to be hanged. Right?

@Anon "This has nothing to do with free speech." Well, actually, it sort of has everything to do with free speech -- hence, the story. The state must prove that his comment meets the definition of "terroristic threat" as charged. Not to repeat a cliche here, but just because someone finds a comment offensive or "sociopathic," that does not automatically make that comment meet the definition of terroristic threat as codified by Texas law.